Exch v. Interstate Cas. Co.
| Decision Date | 06 May 1924 |
| Docket Number | No. 35555.,35555. |
| Citation | 198 N.W. 501,197 Iowa 1130 |
| Parties | LOZIER AUTOMOBILE EXCH. v. INTERSTATE CASUALTY CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Des Moines; J. E. Mershon, Judge.
Action to recover on a policy of indemnity. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.Dunshee & Brody, of Des Moines, for appellant.
C. S. Missildine, of Des Moines, for appellee.
The parties here and the contract of insurance sued upon are identical with those involved in Lozier Automobile Exchange v. Interstate Casualty Co., 195 N. W. 885. That case is decisive of many of the questions raised here.
The plaintiff in this case seeks to recover on the policy of indemnity issued by the defendant to it on account of the alleged wrongful conversion by one Roy Thomas of an automobile sold by plaintiff to him upon a conditional sale contract. At the close of plaintiff's evidence and at the close of all the evidence the defendant moved for a directed verdict in its favor. The motions were overruled, and the jury returned a verdict for the plaintiff for the balance due plaintiff from Thomas on the purchase price of the car with 8 per cent. interest from the date of the sale of the car.
The errors assigned relate in part to the overruling of the motions to direct a verdict.
It is urged there was no evidence that the automobile was wrongfully converted. The contract of purchase is dated February 23, 1920, acknowledges the payment of $100 on the purchase price, and provides that Thomas shall pay $25 on the following day and $50 per month thereafter until all is paid. The evidence shows that he made only one payment of $50 on April 13, 1920. After the latter date plaintiff had some correspondence with Thomas, and on July 12, 1920, a registered letter addressed to him at Battle Creek, Iowa, was returned marked, Shortly thereafter the manager of the plaintiff company tried to locate the car through the state license department, but was unable to do so. He then went to Battle Creek, where Thomas had told him he lived and was running a bakery. He went to the bakery and to the house where he was told Thomas had lived and to the garage where he was told he had kept the car. He did not find either Thomas or the car. He found six or seven people who knew Thomas, but none of them knew where he was.
[1][2] While the evidence of a wrongful conversion of the car by Thomas is not strong, it was not contradicted and, we think, presented a question for the jury. Direct and positive evidence of conversion under such circumstances would often be difficult, if not impossible, of production. The claim of plaintiff is, in substance, that Thomas left or absconded, taking the car, or concealing or disposing of it, and thereby deprived plaintiff of its lien. Such an act is not ordinarily done in the presence or with the knowledge of others. The evidence tended to show that Thomas had lived at Battle Creek, but that he could not be reached by mail addressed to him there, and that upon a search neither he nor the car could be found there, and that persons who knew him there did not know where he had gone. These circumstances, in connection with his neglect of his obligation to make payments on the car, were sufficient to sustain a finding that he had converted the car to his own use to plaintiff's loss.
[3] Error is assigned on the admission of the testimony of the witness Frank Lozier, who visited Battle Creek, regarding the fact that the car had been at that place and where it had been kept there. There is no statement as to where the testimony is to be found in the abstract. The only reference in direct examination to the car or any garage in connection with the visit of the witness to Battle Creek is the following:
In the cross-examination appears the following:
“
Thereupon defendant moved to strike “all the testimony of this witness concerning * * * the location of the garage, under what circumstances the car had left the garage, and the fact that the car was kept or had been at that place” as hearsay. The motion was sustained “so far as it concerns or relates to what was told the witness with reference to some one paying $50 for garage rent and repairs.” The record does not show that the witness had testified that the car had been at Battle Creek or where it had been kept there, except in answer to this question on cross-examination, and that clearly called for hearsay. We think the defendant cannot complain of this.
[4] It is said there was no evidence offered to prove that proofs of loss were furnished the company within the time or containing the information required by the policy. Concerning this the witness Frank Lozier testified that possibly a week after he came back from Battle Creek he talked with Mr. Sweeney (the agent who had written the policy) and gave him a detailed report of the circumstances and outlined what had been done, and he took a full report, and he (Lozier) signed proofs of loss and turned them over to Mr. Mower; that he went to see Mr. Mower and he was drunk; that after four or five trips Mower told him the proofs of loss were misplaced and that he should make out new ones, which he did. Mower was the adjusting agent of the defendant, and was located at Des Moines.
Mr. Sweeney testified:
On cross-examination he said he did not know whether Lozier turned over to him written proofs of loss in this claim. On redirect examination he said:
“I do know that he gave me the information and I verified it and turned it over to Mr. Mower.”
The facts are substantially the same as in the former case between the same parties, and, as in that case, are undisputed. They were there held to be sufficient to establish the furnishing of proofs of loss.
[5] The policy required the...
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